Generally, a Will that is made in writing and signed at its end by the will-maker and two witnesses (all 3 present together at signing) and that is read by or to the will-maker, who appears to understand it, is presumed to be valid.
However, since the sweeping revisions to our Wills and Estates legislation, which came into force in 2014 with the Wills Estates and Succession Act, if a document, including electronically stored documents, does not conform with the formal requirements of a Will, the Court may, nonetheless, declare it to be a Will provided it reflects the authentic, final, testamentary wishes of the maker of the document.
Court orders may also be required to interpret or rectify Wills.
Challenges to a Will
A Will may be challenged on the basis that it is not valid or that it is not fair in the distribution of the assets falling under the Will into the will-maker’s estate.
Validity of a Will
The presumption that a duly executed or properly signed Will that complies with the formal requirements of a Will may be rebutted if there a suspicious circumstances surrounding the making of the Will. These circumstances are many and varied and may include, for example, a Will being made by someone with dementia or being a significant departure from the provisions of a former Will.
To be valid, not only must a Will be properly signed, it must also be made by a will-maker who had the necessary capacity to make the Will and understand the nature and extent of his or her assets, who should benefit from his or her estate, and what he or she is doing. It must also be made by the will-maker exercising his or her own free will and volition, free from any undue influence.
A will-maker has a statutory obligation to make adequate provision for his or her surviving spouse – married or commonlaw, and children – including adopted children (but not step-children). If he or she does not do so, the Court can vary the distribution of the will-maker’s estate from the distribution set out in the Will.
The factors which a Court considers in varying a Will invariably consider the competing claimants’ relationships with the will-maker, but are otherwise many and varied, as are the families who seek variations of Wills.
Estate Assets – Ownership of Assets
Upon the death of a will-maker, the assets owned by the will-maker at the time of his or her death fall into his or her estate. Usually, these assets are in the name of the will-maker but there may be circumstances in which the will-maker held assets jointly with others for convenience. Those assets may still belong to the will-maker, even if, following the will-maker’s death, they are registered in the name of the surviving, joint registered owner. He or she may be holding the assets in trust for the will-maker and, following his death, for his or her estate. The specific circumstances surrounding the transfer of the assets into joint names must be carefully considered to determine the true ownership of the assets.
If the will-maker made a gift of an asset during his or her lifetime, the circumstances around making that gift must be carefully considered to ensure that the will-maker intended to make the gift of his or her own free will and volition. The will-maker must have had the necessary mental capacity to know and understand what he or she was doing and must be free from undue influence in making the gift.
Upon death, the assets which the deceased owns falls into his or her estate and are distributed pursuant to his or her Will, or if he or she did not leave a Will, pursuant to the intestacy provisions of the Wills Estates and Succession Act.
Someone must administer the Estate – a personal representative who may be an executor appointed in the Will or an administrator if the executor cannot or will not do so, or if there is no Will. The personal representative has an obligation to act in the best interests of the Estate and its beneficiaries. Sometimes, concerns arise about the personal representative’s performance of his or her duties in administering the Estate, or the compensation he or she seeks for administering the Estate.
You can rely on our extensive knowledge and decades of experience with disputes arising during the administration of estates.
Trusts, whether set up in a Will or during a person’s lifetime as part of his or her estate plan are regulated by the terms of the Trust and the Trustee Act. Trustees have obligations in performing their duties.
Trusts can be complex and requires the skill and expertise that we can offer to address concerns arising from a trustee’s administration of a Trust, including trust accounting and trustee compensation.